If there is one thing that is clear from Donald Trump’s first 100 days, it is that he is not a regular president. But the courts continue to treat him as one, which is what has us barreling towards a full-blown constitutional crisis.
Jack Goldsmith, a conservative law professor at Harvard, recently described the way courts typically approach presidents: “Much of our law depends on a presumption of regularity in the presidency. It depends on the courts thinking that they can trust the president to comply with orders, and to be honest and truthful in court.”
As Professor Goldsmith suggests, much flows from the presumption of regularity. Courts assume that the president and his administration act in good faith, that their actions are lawful, their statements truthful and their motivations honest. As one early Supreme Court case stated, government officials “are assumed to be men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances.”
The consequences of this presumption are profound. Courts are reluctant to second-guess the administration’s motivations, unlikely to probe into the government’s internal processes and often dismissive of claims of improper bias.
In litigation, this means it is difficult to obtain discovery against the government. In criminal cases, it presents a nearly insurmountable hurdle to claims of improper motive for prosecution — such as selective prosecution based on political considerations.
It is why the Solicitor General is often called the “Tenth Justice” of the Supreme Court, and why federal prosecutors and DOJ lawyers are treated by judges as truth-tellers in complex situations. They receive the benefit of the doubt when errors are made and are granted courtesies often denied to private litigants.
The presumption of regularity has been the subject of debate for decades. It has no clear basis in the Constitution — a document that is largely suspicious of government power. In some cases, it even conflicts with the presumption of innocence or the rules of evidence.
Whatever the merits of narrowing or abolishing this presumption in the past, it is now imperative that courts limit its application and importance.
Today, the Trump administration regularly relies on the presumption of regularity as its go-to defense in lawsuits brought by plaintiffs seeking to halt illegal government actions and protect democracy. Too often, the presumption of regularity hinders courts from delving into the true motivations behind government actions.
In one recent lawsuit, the government argued: “Executive actions that are facially valid — that is, within the lawful authority of the executive — are entitled to a presumption of regularity.” In plain terms: if the government says it acted lawfully and with good intentions, the court must take its word for it — end of story.
Unless it is pared back now, the Trump administration’s abuse of the presumption of regularity will only grow. Trump has already singled out specific law firms and universities for punishment, targeted individuals by name for investigation and instructed the Department of Justice to investigate the Democratic Party’s leading online donation platform.
Trump’s taste for vengeance against political enemies will only intensify, as will his contempt for the courts. The cat-and-mouse game he has played with federal judges is rapidly turning into outright defiance. At every stage, the government asserts the presumption of good faith and regularity to shield itself from the judicial scrutiny democracy requires.
In a normal administration, we could expect the independence of the Department of Justice to act as a check. Indeed, part of the presumption of regularity is based on the professional ethics of the lawyers who appear before judges on behalf of the government.
Pam Bondi has made clear that she rejects this role for herself and her department. Contrary to past practice, she views herself as the president’s lawyer, carrying out his wishes and whims. She is part of his cheerleading team — advocating for his political agenda and burnishing his personal image.
And while some judges have begun to push back, their response remains far too gentle. After the administration denigrated a court order in one of the law firm cases, the judge cautioned that the “intentional additional promulgation of derogatory statements about plaintiff across all the Executive branch agencies hardly appeared to comply with the TRO Order and raised some concern about the general presumption by courts ‘that executive officials will act in good faith.’”
The time has come for the judiciary to scrap the presumption of regularity. It is yet another outdated norm that we can no longer afford. Those fighting to preserve democracy already face a daunting task without judges reflexively giving Trump the benefit of the doubt.
Donald Trump is not a regular president, and the courts must stop treating him like one. He is an aspiring autocrat who weaponizes the legal process to undermine the rule of law. Through his words and conduct, he and his administration have forfeited the right to be believed or trusted.
It is time to take Trump both literally and seriously.
He literally seeks vengeance against his political opponents. He literally wants to send American citizens to foreign gulags. He literally believes the entire federal government works for him and should serve his personal interests.
If our democracy is to survive this president intact, the courts must take all of this very, very seriously.